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Tuesday, 30 August 2016

Government yes to new Bill: Ads that mislead can land celebs in jail

The government has accepted the recommendations of a parliamentary panel to impose stringent accountability on celebrities for endorsing products and for misleading advertisements.

Celebrity brand
ambassadors could soon have to think twice before endorsing products that make
unrealistic claims, which can fetch them a jail term up to five years, apart
from penalty of Rs 50 lakh.

The government has
accepted the recommendations of a parliamentary panel to impose stringent
accountability on celebrities for endorsing products and for misleading
advertisements.

Following a nod to
the proposed official amendments by the Consumer Affairs Ministry, a draft
Cabinet note was moved, and the Law Ministry has cleared significant changes in
the existing legal regime to make celebrities liable for such advertisements.
The changes are expected to be cleared in a Cabinet meeting in the coming week.

Section 17 of the
revised consumer protection Bill defines “endorsement” as any message, verbal
statement or any other form of depiction to show a celebrity’s “likeness” for a
product, which leads the consumer to believe that it reflects the celebrity’s
opinion, finding or experience.

The Parliamentary
Committee on Food, Consumer Affairs and Public Distribution, chaired by J C
Divakar Reddy of Telugu Desam Party, had in its report in April suggested
an unambiguous definition of the term “endorsement” in the new law. The
legislative department of the Law Ministry has, therefore, defined the term
“endorsement” and also “endorser” as including individual, group or any
institution.

Section 75B of the
new Bill seeks to make any “false or misleading” endorsement which is
“prejudicial to the interest of any consumer” a penal offence, punishable with
a jail term of up to two years and a fine of Rs 10 lakh for the first such
offence, and imprisonment of five years along with a fine of Rs 50 lakh for the
second and subsequent offences.

According to the new
Bill, the onus would be on celebrity brand ambassadors to prove their
innocence. “It is a defence if it is proved that the endorser took all
reasonable precautions and exercised all due diligence before endorsing a
product or service, but mistaken belief shall not be a defence,” states the Law
Ministry draft of the new law.

Section 75A makes a
manufacturer and service provider also legally responsible for any false and
misleading advertisements, and prescribes penalties in the same manner in which
celebrity brand ambassadors have been made liable.

The proposed
amendments also lay down a mechanism to prosecute celebrities, stating a court
shall take cognizance of offences regarding false and misleading advertisements
only after a complaint is made by the Central Consumer Protection Authority
(CCPA), a new executive agency that shall be established to fill “an
institutional void in the regulatory regime extant”.

This agency would
have the authority to settle the first offence by celebrities on payment of a
compounding fee, but the brand ambassador shall be exonerated only if the trial
court accepts the settlement.

While ascertaining
the compounding fee, the agency would be taking into account the gross revenue
from sales due to the misleading advertisement, impact of the violation with
respect to the audience it affected, frequency and duration of the violation,
and the vulnerability of the class of people so affected.

The new law also
seeks to authorise the CCPA to make regulations for e-commerce, direct selling
and multi-level marketing. “The Central government may, for the purposes of
protecting the rights of consumers and to prevent unfair trade practices in
e-commerce and direct selling, may make such rules as may be necessary,” the
Law Ministry’s note says.